Wednesday, February 20, 2008

Kenny MacAskill - Public don't need to be consulted on legal reforms

Dictatorship is alive & well in the Justice Department of the Scottish Government under the administrations of Justice Secretary Kenny MacAskill.

While the SNP manage to listen to the public on just about everything else, the Justice Secretary who has been left to do as he pleases without consulting anyone, chooses the path of supporting the legal profession once again, or is he ?

Seldom have we had such a destructive-to-both-sides Justice Minister in Scotland.

IN SETTING up an expert group to "improve" Scotland's legal services, Justice Secretary Kenny MacAskill has managed to tick off a few boxes on recent promises made to the profession.

He is underlining his message that he is indeed willing to listen to the profession, and that he wants lawyers to come up with solutions to the alternative business structure conundrum.

And, by including business experts such as Robert Crawford and Russell Griggs in the working group, he is also making it clear that he sees legal services as a market that is important to the Scottish economy.

Indeed, the group's remit is narrower than its headline aim of improving legal services in the round – rather its role is to "consider what can be done to make the structures and systems of the Scottish legal system more business friendly."

This raises some intriguing points. For example, where will this sit with the Law Society's recently completed consultation on alternative business structures?

The group won't be able to consider any settled policy from the solicitors' regulator until the society has finished trawling through the 90 responses it received and then had its own blueprint approved at its AGM in May.

And anyway, can this short-life working group, which is set to meet only a handful of times over the next six few months, actually come up with any practical suggestions?

Surprisingly, the answer might be yes. The group has been asked to consider how businesses can be encouraged to choose Scotland as the seat of their business and legal activities, look to Scottish lawyers for their advice, and look to Scotland as the jurisdiction of choice for dispute resolution.

One of the group's members, Richard Keen QC, who recently took over as dean of the Faculty of Advocates, has already made suggestions to the Scottish Government that he believes could make Scotland a more attractive jurisdiction for commercial disputes.

While Scots law is not exactly the lingua franca of commercial contracts, Scotland could steal a march on England, argues Keen, by transforming itself into a centre of expertise for dispute resolution and commercial litigation.

That will mean providing more than legal expertise or expert advocacy, and focusing on the commercial realities that influence where a business decides to litigate or mediate – such as the cost.

"We have to offer something that, perhaps, an immediate competitive jurisdiction such as England can't provide," says Keen. "We do provide cost benefits, but that is not enough.

"One area that I would like to see the Government address is the recovery of legal costs. At present, if you litigate in Scotland in the commercial court, you are likely to recover, in the event of your success, approximately half, or slightly more, of the cost you've incurred.

"By comparison, in the commercial court in London you are likely to recover something in the order of 70 or 75 per cent of the cost you've incurred."

This is a clear disincentive to raising an action in a Scottish court, says Keen, who wants a system that would allow recovery of close to 100 per cent of the costs.

"That would immediately give us a cost benefit for those who want to pursue commercial litigation, and will generally be able to pursue it in London or Edinburgh by choice," he argues. "It's the sort of idea that we have to develop if we are going to become an effective and successful centre for the provision of legal services."

This kind of solution seems eminently practical, and could make the market more attractive to businesses. No doubt the other experts will have their own bright ideas.

But there remains the crucial caveat that goes to the heart of the debate about business structures and business-friendly legal services: legal services aren't just about business.

Whatever potentially attractive solutions are put forward, they can't be considered in a vacuum. So which experts is Kenny MacAskill asking for solutions to protecting access to justice?